Rape laws differ on force requirement for prosecution; how should model law be changed?
Updated: A majority of states still rely on the concept of force in defining rape, though the idea is “woefully out of step,” according to a law professor who has written a law review article on the issue.
Though a majority of states still require a finding of force in rape prosecutions, the trend is to define sexual assault in terms of consent, according to Northwestern University law professor Deborah Tuerkheimer. The professor spoke with the New York Times Magazine about her findings, which are summarized in an article slated for publication in the Emory Law Journal.
Though the message “no means no” has been touted in the campaign to stop campus sexual assaults, “the message “doesn’t line up with legal reality,” the New York Times Magazine reports.
New Hampshire is among the states that don’t require a showing of force. Its law defines sexual assault as sexual penetration of another person where “the victim indicates by speech or conduct that there is not freely given consent.”
That law was at the center of the sexual assault prosecution of Owen Labrie, accused of sexually assaulting a 15-year-old girl when he was an 18-year-old senior at the exclusive St. Paul’s boarding school in Concord, New Hampshire. Labrie testified Wednesday that he never had sex with the girl, and that their encounter, which involved kissing and fondling, was consensual, according to this New York Times story.
The girl, on the other hand, had testified that she “said no three times” and there was penetration.
On Friday, a jury found Labrie not guilty of felony sexual assault, NBC News reported.
The case played out as the American Law Institute is re-examining its model penal code on sexual assault, which includes a force requirement. A “heated debate” is taking place over proposed revisions, according to the Times. Eliminating the force requirement “is a no-brainer,” the story says, but there is debate over this question: Should the code follow states like New Hampshire, or go further and require affirmative consent to sexual contact?
Updated at 1:15 p.m. to note the Labrie verdict.
